Opinion
No. 84-465.
October 5, 1984. Rehearing Denied January 18, 1985.
Appeal from the Circuit Court, Pinellas County, Crockett Farnell, J.
Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
The defendant was adjudicated guilty of certain charges against him and sentenced to a year and a day in custody with credit for sixty days for time served, to be followed by eighteen months' community control and then by thirty months' probation. He challenges his sentence on the ground that it is illegal in light of Villery v. Florida Parole Probation Commission, 396 So.2d 1107 (Fla. 1981). We agree and reverse.
We reject the state's novel argument that because the defendant received sixty days' credit for jail time, and this is to be subtracted from the one year and one day imprisonment, the difference is less than one year's incarceration and thus there is no violation of Villery. Credit for time served does not change the sentence, which is a clear violation of the Villery rule.
Accordingly, we vacate the sentence imposed on the defendant and remand for correction of the sentence in accordance with Villery.
REVERSED AND REMANDED.
OTT, A.C.J., and CAMPBELL, J., concur.
ON MOTION FOR REHEARING
This court has previously issued an opinion in this case holding that the defendant's sentence violated the rule announced in Villery v. Florida Parole Probation Commission, 396 So.2d 1107 (Fla. 1981). By motion for rehearing, the state has called our attention to section 921.187, Florida Statutes (1983), which provides in part as follows:
921.187 Disposition and sentencing; alternatives. — The following alternatives for the disposition of criminal cases shall be used in a manner which will best serve the needs of society, which will punish criminal offenders, and which will provide the opportunity for rehabilitation. A court may:
. . . .
(7) Impose a split sentence whereby the offender is to be placed on probation upon completion of any specified period of such sentence, which period may include a term of years or less.
We agree with the state that the foregoing statutory provision abrogates the Villery rule. However, in this case the defendant's offense was committed on June 26, 1982, and the statute was effective October 1, 1983. We agree with the decision of our sister court in Brown v. State, 460 So.2d 427 (Fla. 5th DCA 1984), that the statute may not be applied retroactively.
Accordingly, the motion for rehearing is DENIED.
OTT, A.C.J., and DANAHY and CAMPBELL, JJ., concur.